시장지배적 지위 남용 관련 SKT 멜론 온라인 음악 서비스 사건에 대한 비판적 고찰
A Comment on the Abuse of Market Dominant Position Case concerning SK Telecommunication Melon Online Music Service
주진열(부산대학교)
32권, 181~227쪽
초록
In October 2011, the Supreme Court affirmed the Seoul High Court’s 2007Nu8623 decision which recognized that the plaintiff SK Telecommunication (SKT) which provides mobile telecommunication service as well as online music service Melon, neither abused its market dominant position in mobile telecommunication market to restrain competition, nor undermined consumers’ benefit in online music service market, by its closed Digital Right Management (DRM) policy. First of all, although SKT asked mobile phone makers to provide SKT MP3 phones with can play DRM MP3 music files provided by Melon (Melon files), it did never force its telecommunication serve customers who uses SKT MP3 phones to buy Melon files. There was no tying arrangement. However, the lower court erroneously accepted the Korean Fair Trade Commission (KFTC)’s argument that SKT did force its users to buy Melon files by de facto tying. In addition, KFTC never proved that SKT occurred any anti-competitive effect or adverse effect of consumers in the Online music market through SKT MP3 phones. Instead, KFTC just argued that the rapid growth of Melon in the Online music market was the result of abuse of dominant position of SKT in the mobile telecommunication market through SKT MP3 phones. Again, the lower court erroneously decided that the rapid growth of Melon was the result of leveraging dominant position of SKT through SKT MP3 phones. But the lower court rightly denied ‘abuse’ of dominant position of SKT. The Melon Court just affirmed the main part of the lower court’s decision: denying abuse of dominant position of SKT. Therefore, contrary to some commentaries on the Melon case, it cannot be said that the Court affirmed theories of de facto tying as well as monopoly leveraging acknowledged by the lower. To avoid any misunderstanding with the meaning of the Melon case, of course, the Court should have appointed that the lower court’s theories of de facto tying and monopoly leveraging was absurd and unacceptable under Korean competition law.
Abstract
In October 2011, the Supreme Court affirmed the Seoul High Court’s 2007Nu8623 decision which recognized that the plaintiff SK Telecommunication (SKT) which provides mobile telecommunication service as well as online music service Melon, neither abused its market dominant position in mobile telecommunication market to restrain competition, nor undermined consumers’ benefit in online music service market, by its closed Digital Right Management (DRM) policy. First of all, although SKT asked mobile phone makers to provide SKT MP3 phones with can play DRM MP3 music files provided by Melon (Melon files), it did never force its telecommunication serve customers who uses SKT MP3 phones to buy Melon files. There was no tying arrangement. However, the lower court erroneously accepted the Korean Fair Trade Commission (KFTC)’s argument that SKT did force its users to buy Melon files by de facto tying. In addition, KFTC never proved that SKT occurred any anti-competitive effect or adverse effect of consumers in the Online music market through SKT MP3 phones. Instead, KFTC just argued that the rapid growth of Melon in the Online music market was the result of abuse of dominant position of SKT in the mobile telecommunication market through SKT MP3 phones. Again, the lower court erroneously decided that the rapid growth of Melon was the result of leveraging dominant position of SKT through SKT MP3 phones. But the lower court rightly denied ‘abuse’ of dominant position of SKT. The Melon Court just affirmed the main part of the lower court’s decision: denying abuse of dominant position of SKT. Therefore, contrary to some commentaries on the Melon case, it cannot be said that the Court affirmed theories of de facto tying as well as monopoly leveraging acknowledged by the lower. To avoid any misunderstanding with the meaning of the Melon case, of course, the Court should have appointed that the lower court’s theories of de facto tying and monopoly leveraging was absurd and unacceptable under Korean competition law.
- 발행기관:
- 한국경쟁법학회
- 분류:
- 기타법학